MARRIAGE LAWS: State same-sex marriage laws would be invalid: leading QC

by Peter Baker

News Weekly, March 30, 2013

Australia’s leading constitutional lawyer has advised that any attempt by the states to legalise same-sex marriage would be inconsistent with the federal Marriage Act and inconsistent with the Commonwealth Constitution.

David Jackson QC is considered Australia’s leading constitutional lawyer. Recently, he was asked for a legal opinion by the NSW Department of Attorney-General and Justice for an inquiry by the NSW Legislative Council Standing Committee on Social Issues into a proposed same-sex marriage bill.

In particular, Jackson focused on possible conflicts between any state same-sex marriage law and the federal Marriage Act 1961 and the Constitution.

The Constitution says that the federal parliament has “power to make laws for the peace, order, and good government of the Commonwealth” in relation to “marriage”, as well as “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants” (ss 51 xxi and xxii).

While the states are also granted powers to legislate with respect to marriage, the Constitution states that if any “law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid” (s 109).

Jackson points out that the federal parliament has legislated on marriage in the federal Marriage Act. It defines “marriage” as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life” (s.5 1), which leads to several observations.

The Marriage Act applies to the solemnisation of all marriages taking place in Australia to the exclusion of state laws (ss.61, 8(3), 10, 23A(1), 40(1), 48, 88C, 94, 95, 98, 99-105 of the Constitution).

The Marriage Act makes it clear that it is prescribing what are the requirements, both substantive and procedural, for a union in Australia to be a marriage.

In doing so, the federal parliament has determined that the only valid marriages are those following within the definition of “marriage” in the Marriage Act (s.5 1).

This has led Jackson to several conclusions.

Because “marriage” is defined as the union of a man and a woman, the Marriage Act could not be a more obvious impediment to solemnising a marriage between same-sex partners.

Further, as the Marriage Act seeks to determine what shall, and what shall not, be regarded as a valid “marriage” in Australia, it “covers the field”, to the exclusion of any state law on this matter. Hence, “only those unions which satisfy the requirements of the Marriage Act are valid marriages in Australia. Same-sex unions cannot satisfy that requirement,” he said.

Finally, he concluded that any state law that attempted to solemnise any other from of relationship than that provided for by the Marriage Act would necessarily be inconsistent with the Act. In terms of s.109 of the Constitution, it would be “invalid”.

The opinion acknowledges that states can legalise same-sex unions’ rights and determine their obligations as between themselves, or as regards third parties in relation to their property and other matters.

However, the difficulty for state legislation arises when proponents of such legislation endeavour to enact same-sex marriage laws at a state level. Their problem is that the more such legislation treats the same-sex unions as marriage, “or as having the status of marriage, or treats the parties as ‘married’, the closer it comes to inconsistency with the Marriage Act”.

Jackson says, hypothetically, if state same-sex marriage laws were considered valid, then such laws would face inevitable problems.

First, such laws would have to make provisions for same-sex divorces, because they would not be covered by the federal Family Law Act 1975.

Second, any state law would inevitably face problems in relation to such issues as distribution on intestacy, family provision legislation or accident compensation or other benefits, when a same-sex couple who married in one state later moved to another state.

Jackson also considered how the High Court might determine if the federal Marriage Act was amended to allow for same-sex marriage. He said that it was not possible to predict how the Court might rule, but speculated that the court would likely accept a wider definition that allowed for same-sex unions.